Compartilhar

versão On-line ISSN 1727-3781

PER vol.14 no.2 Potchefstroom Jan. 2011

http://dx.doi.org/10.4314/pelj.v14i2.8

Most legal systems today recognise identity as a personality interest which deserves protection. The level of protection, however, differs substantially from one jurisdiction to the next.

Dutch law provides elaborate protection against unauthorised use of an individual's image. The Auteurswet protects the individual against unauthorised publication of his or her portrait. The explanatory memorandum to the Auteurswet explains that the concept "portrait" can be defined as any depiction of a person's face with or without any other parts of the body, irrespective of how the depiction was made. Section 21 of the Auteurswet provides that publication of the portrait is not authorised if the subject or, after demise of the subject, one of his or her surviving dependants has a reasonable interest in opposing publication.

The requisite interest can take one of two forms. Firstly, there is the interest in privacy. A subject can oppose publication of a portrait if the subject can show that such publication will infringe on his or her right to privacy. By the nature of things, famous people such as politicians and film and sport stars must endure invasion of privacy to a greater extent than others, but there are limits, and when the limits are exceeded this excess can form the basis for a claim. Therefore, when a magazine stated on the cover that a football player had a homosexual relationship with a singer but the article in the magazine declared the opposite, it was held that there had been a breach of the football player's privacy.31

Secondly, there is a commercial interest. Dutch law recognises the fact that the image of a famous person has become a commodity.32 In the 't Schaep met de Vijf Pooten case, 33 the Hooge Raad laid down two requirements before an individual could claim a commercial interest. Firstly, the individual concerned must already have obtained some fame from practising his or her profession. The concept "profession" is interpreted broadly, so that even amateur sports people, who do not strictly speaking practise sport as their profession, are included here if they have gained some fame from participation in their sports.34 Secondly, there must be a commercial exploitation of such fame. This aspect was clearly explained in the De slag om het voetbalgoud case. 35 A book, entitled De slag om het voetbalgoud, filled with photographs of the players in the Dutch football team which played in the final of the 1974 World Cup tournament, was published. This in itself did not violate any of the players' rights as it merely amounted to a factual report on a contemporary matter of public interest. However, the publishers sold the entire print run of the book to a company which used the book as part of its marketing campaign. The Rechtbank Haarlem held that this latter aspect amounted to commercial exploitation, with the result that it infringed on the players' portrait rights.

In the United States of America, various states protect identity under the broader concept of privacy. The Second Circuit Court of Appeals in New York laid the foundation in Haelan Laboratories Inc v Topps Chewing Gum.36 The appellant contracted with various baseball players for the exclusive right to use their images in the marketing of the appellant's chewing gum. The respondent did the same in the marketing of its chewing gum, but did not obtain the consent of the players concerned. The court held that, apart from the statutory right to privacy in the New York Civil Rights Law, a right to publicity could also be derived from the common law of New York.

The Second Circuit Court of Appeals eventually held in Pirone v MacMillan37 that the court had erred in Haelan Laboratories38 since the right to identity was recognised only by statute in the New York Civil Rights Law and that there was no distinguishable common law right to identity in New York.39 By this time, however, Haelan Laboratories40 had already served repeatedly as authority and led to the recognition of a common law right to publicity in more than thirty of the US states.41

In Allison v Vintage Sports Plaques,42 Kravitch J of the federal appeals court for the Eleventh Circuit summarised the common law position succinctly.43 She explained that in Alabama, as in various other jurisdictions in the United States, the right to the use of a person's image is protected under the tort of invasion of privacy. This tort can be committed in any one of four ways. Firstly privacy is violated through access to the plaintiff's physical and intimate secludedness, secondly through publication in conflict with generally accepted norms of decency, thirdly through publication which places the plaintiff in a false light, and fourthly through unauthorised use of the plaintiff's image for commercial gain. The third category is also known as the "tort of false light publicity", while the fourth category is also known as the "tort of commercial appropriation".

The basis for the protection of the right to identity in terms of these measures is the financial interest of the individual and not merely human dignity, as one would expect with the invasion of privacy. To succeed with a claim under commercial appropriation, the plaintiff must prove that the respondent used the plaintiff's identity, that the purpose of the use of the plaintiff's identity is commercial or other gain for the respondent, that the plaintiff's image was used without consent and that the plaintiff will suffer loss or prejudice as a result. In this regard, a court would look at the commercial damage to the business value of the human identity or the extent to which the plaintiff is deprived if he or she does not receive money for authorising the use of his or her image.

Some jurisdictions in the United States of America follow a twofold approach where both statutory and common law measures are applied to provide extensive protection against the unauthorised use of an individual's image.44 In California section 3344 of the Civil Code provides that it is unlawful for one person to use the name, voice, autograph, photo or likeness of someone else for purposes of advertising, trade, or solicitation of customers or clients, without consent. An injured party may, in terms of this provision, cumulatively claim damages consisting of the profit which the wrongdoer gained from the use of the person's image, as well as punitive damages.45 The protection is not limited to famous people, but is at the disposal of anyone whose image is used without consent.46 Section 1449 of the Oklahoma Statutes contains essentially the same provision.

Apart from the extensive statutory provisions to protect the individual against unauthorised use of his or her image, common law protection is also recognised in California47 and Oklahoma.48 In Porten v University of San Francisco49 the court explained that the right to identity can also be protected by means of the tort of invasion of privacy. This tort can be committed in one of four ways. Firstly, privacy is breached through violation of the plaintiff's physical and intimate seclusion, secondly through publication contrary to generally accepted norms of decency, thirdly through publication which places the plaintiff in a false light and fourthly, by using the image of the plaintiff for commercial gain without consent.

7 South African law

In South Africa the common law approach has thus far been followed where the attributes of a person have been used without consent for commercial purposes. After some uncertainty, the Supreme Court of Appeal in Grütter v Lombard50 at last recognised an image as an aspect of personality which demands protection, and this has now been confirmed by the Western Cape High Court in Wells v Atoll Media (Pty) Ltd.51

In Grütter52 the Supreme Court of Appeal had to decide if the name of the appellant could still be used in the name of a law firm even though his relationship with the firm had come to an end. The appellant did not claim any exclusive right to use the name, nor did he allege that the respondents made themselves guilty of passing off. The appellant merely made the case that it was well-known that he was one of the persons to whom the name referred and that he no longer wished to be associated with the firm now that his relationship with them had ceased.

In a unanimous judgment, Nugent JA held that privacy is merely one of a variety of interests that enjoy recognition in the concept of personality rights in the context of the actio iniuriarum. The interest which a person has to protect his or her identity against exploitation cannot be distinguished therefrom and is similarly encompassed by that variety of personality rights which is worthy of protection.

[i]dentity is that uniqueness which identifies each person as a particular individual and as such distinguishes him from others. Identity manifests itself in various indicia by which the person involved can be recognised: that is, facets of his personality which are distinctive or peculiar to him, such as his life history, his character, his name, his creditworthiness, his voice, his handwriting, his outward shape, etcetera. A person has a definitive interest that the unique nature of his being and conduct must be respected by outsiders. Similarly, identity is infringed upon if indicia thereof is used without consent in a way which is not compatible with the image of the right holder.

On the basis of these principles, Nugent JA ruled that the appellant was entitled to insist that there should be no potential for error and ordered the respondents to desist from using his name and rectify the matter within a period of 30 days.

Neethling54 is apparently of the opinion that the right to identity is infringed only if the attributes of a person are used without consent in a way which cannot be reconciled with the actual image of the individual concerned. To succeed with a claim where the attributes of a person are used without permission, it therefore seems to be a requirement that the person concerned should indicate that there was some misrepresentation of his or her personality. In this regard, it may be sufficient if the unauthorised use of a person's attributes could create the impression that the person concerned consented to such use or has been compensated for such use.

This approach is also followed in Grütter,55 but there is also a second seminal principle intertwined in the judgment of Nugent JA which concerns the unjustified use of an individual's image for commercial gain. Nugent JA indicated that the interest of a person in protecting his or her image from commercial exploitation cannot qualitatively be distinguished from and is equally encompassed by the variety of personality rights which are protected under the concept of dignity.56 He further indicated that in casu that there was no justification for the respondents to use the appellant's name for their own commercial benefit.57 This would then mean that the right to identity can in this context be violated in one of two ways.

Firstly, a person's right to identity is violated when the attributes of that person are used without permission in a way which cannot be reconciled with the true image of that person. Apart from the unauthorised use of a person's image, this kind of infringement also entails some kind of misrepresentation concerning the individual, such as that the individual approves of or endorses a particular product or service or that an attorney is a partner in a firm, while this is not the case. The unlawfulness in this kind of case is found in the misrepresentation concerning the individual and, consequently, in the violation of the right to human dignity.

Secondly, the right to identity is violated if the attributes of a person are used for commercial gain without authorisation by another person. Apart from the unauthorised use of the individual's image, such a use also primarily entails a commercial motive, which is exclusively aimed at promoting a service or product or to solicit clients or customers. The unlawfulness in this case is found mainly in the infringement of the right to freedom of association and the commercial exploitation of the individual.

This is not stated explicitly in Grütter,58 but can be deduced from a careful analysis of the judgment. The significance of the judgment by Davis J in Wells59 is that this interpretation of the judgment in Grütter60 has now received judicial confirmation. Davis J clearly interpreted the judgment in Grütter61 as holding that the appropriation of a person's image or likeness for the commercial benefit or advantage of another calls for legal intervention in order to protect the individual concerned.

Thirdly, the judgment in Wells v Atoll Media (Pty) Ltd62 highlights an important aspect of the law of personality to which the court in Grütter63 also referred, and that is the interrelation between the various manifestations of personality rights. Wells64 simultaneously involved the right to a good name, the right to privacy and the right to identity. I have previously criticised the approach in various jurisdictions in the United States, which views the unauthorised use of a person's image as a violation of the right to privacy, as jurisprudentially less sound than an approach which bases the unauthorised use of a person's image on the infringement of dignitas.65 Privacy in this context is usually violated through access to a person's physical and intimate secludedness, or through publication in conflict with generally accepted norms of decency.66 The criticism was based on the argument that the unauthorised use of a person's image would generally not involve either of these aspects.

However, Wells v Atoll Media (Pty) Ltd67 has clearly illustrated how the unauthorised use of a person's image could also negatively impact on that person's privacy. In the first instance, no matter how one looks at the matter, the publication of a provocative photograph of a twelve-year-old girl simply cannot be reconciled with generally accepted norms of decency. It would be hard to reconcile it, even if the girl and her parents or guardian had consented to such use. Without consent, such publication should simply not be tolerated. Secondly, the publication of the photograph exposed the girl to disparaging mobile text messages sent to her telephone. This latter fact clearly illustrates how the unauthorised use of an image can also draw unwelcome attention and affect the private life of the individual concerned. As a result, the criticism of the American approach may be unfounded.

But what is the implication of all of this for media freedom? With any action for the infringement of a subjective right, a variety of conflicting interests must be weighed against one another. With the use of a person's image, the rights to identity, human dignity and freedom of association of the individual must often be weighed against the user's right to the freedom of expression and the freedom of the media. This important question relating to the right to identity is only touched upon as an aside in the Grütter68 and Wells69 cases. In both instances the courts made it clear that the right to identity is not absolute, but did not discuss this issue much further.

It goes without saying that the use of a person's attributes must be unlawful before a plaintiff will succeed with any claim in delict. In other cases where satisfaction or damages were claimed due to the infringement of dignitas, the courts have already recognised certain grounds of justification which would mean that the apparent violation of personality rights would indeed be lawful.

Neethling70 correctly states that public policy can justify an apparent violation of the right to identity, but it would also make sense to consider the other grounds on which the infringement of dignitas can be justified. These grounds include consent,71 truth and public interest,72 fair comment73 and jest.74 In addition Neethling75 also indicates that the public interest in art can in appropriate cases justify the use of a person's image.

8 Conclusion

Because the South African approach is derived from a common law based on general principles, the law as laid down and contemplated in Grütter76 and restated in Wells77 is open and receptive to change, so that current developments in commerce can be accommodated. This approach provides broader scope for protection than most statutory or codified provisions dealing with the right to identity. On the one hand the South African law avoids discrimination based on fame or the lack thereof, which seems to beset Dutch law in this regard. On the other hand, it seems as if South African law now recognises a variety of attributes that are worthy of protection, in contrast to statutory or codified provisions which, by definition, can protect only specifically-listed attributes.

The judgment in Wells78 is significant for various reasons. It is a restatement of the law laid down in Grütter79 and provides a judicial interpretation of the judgment in the latter case. In the process, Davis J has also redefined the right to identity and provided some clarity on what infringement of that right would amount to.

It is now trite that everyone has a right to identity. For these purposes, identity includes the collection of specific congenital and acquired attributes which are unique to the individual and distinguish the individual from others. When the attributes of a person are used without consent, the right to identity can be violated in one of four ways. A person's right to identity can be infringed if the attributes of that person are used without permission in a way which -

a) cannot be reconciled with the true image of the individual concerned;

b) amounts to commercial exploitation of the individual;

(c) annot be reconciled with generally accepted norms of decency; or

(d) violates the privacy of that person.

From this analysis, it would seem that our law has now reached a level of development which is not very different from the common law tort of invasion of privacy which applies in most US states.

In the final analysis, though, Wells80 should not be seen as a precedent to suggest that the media may not display or publish a photograph depicting an individual subject unless that subject has consented to such display or publication. The unique facts of the case and the fact that Davis J repeatedly qualified his judgment with reference to the context of the case mean that such an interpretation would be exaggerated. The user can therefore still, in certain appropriate cases, justify the unauthorised use of a particular person's attributes on the basis of public interest if such use takes place mainly in connection with public interest reporting, jest or art.

What is clear though is that the law in South Africa, because of the flexibility of a common law approach based on general principles, probably leads the way when it comes to the protection of an individual against the unauthorised use of his or her attributes.

The Labour Appeal Court in Kylie v CCMA decided the vexed question as to whether or not the CCMA has jurisdiction to resolve a dispute of unfair dismissal involving a sex worker. Both the CCMA and the Labour Court had declined to assume jurisdiction to resolve the dispute on the basis that the employee's contract of employment was invalid and therefore unenforceable in law. The Labour Appeal Court, on the other hand, overturned the Labour Court's decision and held that the CCMA has jurisdiction to resolve the dispute, regardless of the fact that sex work is still illegal under the South African law. For this decision, the Labour Appeal Court relied on section 23(1) of the Constitution, which provides that everyone has the right to fair labour practices. According to the Labour Appeal Court the crucial question for determination by the court was if a person in the position of a sex worker enjoyed the full range of constitutional rights including the right to fair labour practices. In the court's reasoning the word everyone in section 23(1) of the Constitution is a term of general import and conveys precisely what it means. In other words everyone, including a sex worker, has the right to fair labour practices as guaranteed in the Constitution. A critical analysis of the judgment is made in this case note. The correctness of the court's judgment, particularly insofar as it relates to the approach to and the determination of the issue of jurisdiction, is questioned. It is argued that the Court lost focus on the main issue in the appeal, namely jurisdiction, and instead proceeded to place heavy emphasis on the employee's constitutional rights. Relying on a handful of cases of the Supreme Court of Appeal and the Constitutional Court, the case note concludes that the approach adopted by the Labour Appeal Court in the determination of the appeal was incorrect -hence its decision. Given the critical importance of the matter, and the attendant implications of the judgment for labour litigation in South Africa, it is hoped that a similar case will soon come to the attention of a superior court and that a definitive pronouncement will be made.

On 28 May 2010, the Labour Appeal Court delivered a judgment in the case of Kylie v CCMA1 regarding the jurisdiction of the CCMA to resolve a dispute of unfair dismissal involving a sex worker. Coincidentally, the judgment was handed down on the eve of the FIFA 2010 World Soccer competition, held in South Africa,2 when a large contingent of sex workers were reportedly expected to descend on the shores of the Republic to ply their trade during the tournament.3 Unsurprisingly, given the controversy attached to the issues, the judgment was well noted in the media and drew some quite interesting commentary in legal circles.4 In the judgment delivered by Davis JA, with which Zondo JP and Jappie JA concurred, the Court overturned a previous judgment of the Labour Court,5 where it was held that the CCMA ought to have refused to grant a relief to the employee because by doing so it would have been sanctioning or encouraging illegal activity. The Labour Appeal Court held that the CCMA did have the jurisdiction to resolve the dispute, regardless of the fact that sex work is an illegal activity.6 In justifying the conclusion it reached the court premised its argument on section 23(1) of the Constitution,7 which provides that everyone has a right to fair labour practices. The Court reasoned that the word "everyone" is a term of general import and unrestricted meaning and that it means what it conveys.8 Of the main issues examined by the Court was if a person such as a sex worker was entitled to enjoy constitutional rights in general, and specifically those rights set out in section 23 of the Constitution. Relying on the minority judgment of O'Regan and Sachs JJ in S v Jordan,9 the Court held that the illegal activity of a sex worker does not per se prevent the sex worker from enjoying a range of constitutional rights, including the right to fair labour practices.

The purpose of this case note is to analyse the judgment critically and to consider its implications for the future of labour litigation in South Africa. The correctness of the judgment, in particular, and especially insofar as it relates to the jurisdiction of the CCMA, or the Labour Court, to resolve disputes of the nature presented by the case, will be questioned. It will be argued that the Court erred in finding that the CCMA has the jurisdiction because jurisdiction is not only a question of interpretation but a matter of fact. It is either there or not. Jurisdiction, as will be shown, is predicated on the twin pillars of the court's authority over the litigating parties and the court's ability to grant an effective judgment. As the Constitutional Court has repeatedly stated, the courts are concerned with legality.10 And, to suggest that the requirement of legality in the determination of jurisdiction is unconstitutional, as the judgment implies, would no doubt be in conflict with the same Constitution that the courts seek to uphold. In this analysis, therefore, the main question will be this: should the Constitution, as the supreme law, be interpreted as conferring on the courts and tribunals jurisdiction to enforce any transactions which are in conflict with the law? Inevitably, the Courts' approach to the main issues raised by the appeal will be critically examined. Consequently, it will be argued that both the CCMA and the Labour Court's decisions were correct insofar as the jurisdictional ruling on the matter was concerned.

2 Factual background

The appellant, a certain Ms Kylie, (hereinafter the employee) was employed in a massage parlour as a sex worker. Her employment was terminated without a proper hearing. She then referred a dispute of unfair dismissal to the CCMA for arbitration. In the light of the fact that the employee was a sex worker, the CCMA Commissioner ruled that she did not have jurisdiction to entertain the dispute because sex work is strictly prohibited by legislation.11 The Commissioner argued that section 23 of the Constitution and the Labour Relations Act12 (hereinafter the LRA) did not apply to workers who did not have a valid and enforceable contract, which was the situation in this instance, as the employee was engaged in an invalid contract. This decision of the Commissioner was then taken on review to the Labour Court.

In the Labour Court,13 the employee's argument was that the Commissioner committed a legal error in excluding workers who did not have a valid and therefore enforceable contract from the ambit of the LRA, because the LRA defines employees to include anyone 'who works for another person' and accordingly the Act applies to all employment relationships irrespective of whether they are underpinned by enforceable contracts or not.14 In the light of the approach taken in argument, the Labour Court sought to clarify at the outset what its judgment was about and which issues it does not decide. The Labour Court stated that its judgment does not decide (1) that a sex worker is an employee for the purposes of the LRA, just that neither the CCMA nor the Court should enforce the statutory right to a fair dismissal under the LRA; (2) that a sex worker is not entitled to protection under the Basic Conditions of Employment Act, occupational health legislation, workers' compensation or unemployment insurance and; (3) the issue as to whether or not the definition of employee in the LRA applies to those in an employment relationship without a valid contract.15 In the Court's opinion, the proper approach to the issues would not be to ask whether a sex worker was an employee within the ambit of the definition in the LRA or not. The correct approach, as the Court determined, would be to ask whether as a matter of public policy courts (and tribunals), by their actions, ought to sanction or encourage illegal conduct in the context of statutory and constitutional rights.16 It is submitted that this approach was correct. Consequently, the Labour Court found that the CCMA Commissioner ought to have refused to grant the relief sought by the employee because by doing so the CCMA would have been sanctioning or encouraging prohibited commercial sex. 17 In effect, the Labour Court's judgment confirmed the CCMA's jurisdictional ruling on the matter. It is this decision of the Labour Court which gave rise to the judgment of the Labour Appeal Court under discussion.

3 The decision of the Labour Appeal Court

Two main issues stood out for the determination by the Court. Firstly, the Court had to determine whether or not the CCMA Commissioner was correct in her jurisdictional ruling, and/or whether or not the Labour Court was correct in its approach and assessment of the law and consequently its judgment. Secondly, and depending on its finding against the judgment of the Labour Court, if a remedy avails to an employee involved in the kind of the employment relationship presented by the case.

The Court commenced with an analysis of the Labour Court judgment. It noted that while the Labour Court conceded that Kylie was an employee for the purposes of the LRA, the Labour Court did not acknowledge her rights to relief or the enforceability of her rights in terms of the LRA simply because she was a sex worker and therefore, in the opinion of the Labour Court, not entitled to protection against unfair dismissal.18 On the other hand, the Court also noted the submissions made on behalf of the employee. According to the employee, the Labour Court adopted a wrong approach in its judgment. Instead of commencing with the Constitution, that is, whether or not a person such as the employee enjoyed constitutional rights in general and specifically those entrenched in section 23(1),19 the Labour Court, so it was submitted, started with the discussion on policy as divined from the law of contract.20 Further to that, the employee argued that it should be only after the question of the application of the Constitution has been answered, and if in the favour of the employee, that the Court would be required to proceed to determine the issues of remedy, and that it would be at this stage that the question of policy would come in.21 This submission, seemingly, impressed the Court. The Court stated that since the dispute was predicated on the application of the LRA, it would be necessary to commence with the Constitution, to examine the application of section 23(1) to the facts of the dispute.22 In its analysis the Court noted that section 23(1) provides everyone the right to fair labour practices and that the word 'everyone' is a term of general import and unrestricted meaning -it means what it conveys.23 The Court then made reference to the minority judgment of the Constitutional Court in S v Jordan.24 In the latter case O'Regan and Sachs JJs had held that prostitutes are not stripped of rights to be treated with dignity simply because the nature of the work they undertake devalues the respect that the Constitution regards as inherent in the human body.25 The Court then turned to confront the key question, that is, whether section 23 affords protection to a sex worker. In its judgment the court found that it does. In support of this conclusion reference was made to a few cases, among others, NEHAWU v UCT26; SANDU v Minister of Defence27; State Information Technology Agency (Pty) Limited v CCMA28; and Denel (Pty) Ltd v Gerber.29

With reference to NEHAWU v UCT the Court observed the Constitutional Court's emphasis that the focus of section 23(1) of the Constitution was on the relationship between the worker and the employer and the continuation of that relationship on terms that are fair to both.30 The Court further noted that in SANDU v Minister of Defence the Constitutional Court considered the question as to whether members of the armed forces constituted workers for the purposes of section 23(2)31 of the Constitution. With reference to the latter case the Labour Appeal Court found that even if a person is not employed under a contract of employment, that does not deny the employee all constitutional protection.32 Based on the State Information Technology (Pty) Limited v CCMA and the Denel (Pty) Ltd v Gerber cases, the court summarised its approach thus:

In summary, as sex workers cannot be stripped of the right to be treated with dignity by their clients, it must follow that, in their other relationship namely with their employers, the same protection should hold. Once it is recognised that they must be treated with dignity not only by their customers but by their employers, section 23 of the Constitution, which, at its core, protects the dignity of those in an employment relationship should also be of application.33

Having decided that the sex worker meets the threshold requirement for constitutional protection, that is, being the beneficiary of the applicable constitutional rights,34 the Court turned to examine the question of relief. The Court noted that compensation for a substantively unfair dismissal would be inappropriate in the present kind of case. By contrast, however, the Court held that monetary compensation for a procedurally unfair dismissal would appear to be applicable in the appropriate case where the services rendered by the employee are classified as illegal. For this, the Court reasoned that this kind of compensation is independent of the loss of illegal employment and is treated as a solatium for the loss by an employee of her right to a fair procedure.35 Regarding the future application of the LRA to cases of a similar nature the Court stated that for the reasons given in its judgment, cases involving employment relationships which are in breach of legislation, such as the present dispute, should proceed through the constitutional threshold but not all will enjoy the defining weight of public policy so as to justify the granting of a remedy.36

4 Analysis of and comment on Kylie v CCMA 2010 4 SA 383 (LAC)

4.1 The Court's approach to the issues

The judgment, in my opinion, is problematic and quite erroneous on various levels. First, it is not readily ascertainable from the judgment what the main issues are. In its judgment the Court commenced with the background on the facts of the case, the submissions made by the parties both in the CCMA and the Labour Court, and the analysis of the Labour Court's judgment.37 Since the matter was an appeal against the decision of the Labour Court regarding its jurisdictional ruling, it was expected of the Labour Appeal Court to introduce, right at the beginning of its judgment, the main issues and the legal questions to be decided. Instead, the Labour Appeal Court cluttered the issue of jurisdiction with the question of the sex worker's entitlement to constitutional rights, such that the latter consideration overshadowed the main issue, which is jurisdiction. It is submitted that this approach contributed immensely to the Court's losing focus on what the main issue for determination in the appeal was.38

Secondly, the approach of the Court on the question of jurisdiction is, with respect, erroneous. As will be argued here below, instead of placing a heavy reliance on the rights of the person as an employee, the Court should have considered equally the nature of the dispute and the circumstances surrounding it to determine whether or not the dispute was enforceable in the courts. Linked to the Court's approach to the case is the order granted. The Court's order, it is submitted, is confusing and to some extent impracticable. An extensive argument in support of this contention is made below.

It is important to emphasise that this case hinged predominantly on jurisdiction, hence the order granted by the Court. In its approach, the Court preferred to decide the issues from the constitutional rights perspective. What the Court seemingly failed to do, though, was to put the dispute in a clearer perspective from the onset. Nevertheless, the Court proceeded on the basis that section 23 of the Constitution was the premise from which all issues related to the dispute could be addressed. In this regard the Court stated that 'since the dispute was predicated on the application of the LRA, it is necessary to commence with the source of the LRA, that is, to engage in an examination the application of section 23(1) to the present dispute'.39 The Court accepted that the word 'everyone' in section 23(1) of the Constitution is a term of general import and unrestricted meaning, and that it conveys what it means. 40 In the Court's reasoning, it would not matter if the employee was a criminal or involved in any other form of criminal activity as employment: the right to fair labour practice is available to everyone including a sex worker.

This reasoning of the Court seems attractive but cannot be accepted entirely without qualification. As a matter of logical construction, it is submitted, the right to fair labour practices is not available to "everyone" in the strictest literal sense, but applies exclusively to those persons who are involved in an employment relationship.41 It is distinct from other rights such as the right to life, the right to dignity, and the right to equality, all of which depend for their existence simply on the fact of one's being human. The latter rights are actually fundamental human rights which accord to every human being by reason of being alive. In contrast, the right to fair labour practices is available only to persons who are involved in an employment relationship. It is submitted that the Court's extensive examination of this concept was unnecessary because the status of the employee was not an issue in dispute in this case. All that was required or expected of the Court was to confirm, as the Court correctly did, that the employee was an employee for the purposes of the LRA and the Constitution.42 Surprisingly, the Court then proceeded to determine if the employee was entitled to relief.43

It is submitted, with respect, that this was a step prematurely taken by the Court. Instead of proceeding to consider the question of relief, the Court should have proceeded to consider the nature of the employment contract or relationship to determine whether or not it was legally enforceable. That examination, it is argued, was meticulously done by Cheadle J in the Labour Court.44 As will be shown below, it is not only the Court's power to hear a party that determines jurisdiction but most importantly the Court's power to give an effective judgment which is the key.

4.2 The test for jurisdiction

In Ewing McDonald & Co Ltd v M & M Products Co45 the Appellate Division, as it was then known, defined the term jurisdiction as 'the power vested in a Court by law to adjudicate upon, determine and dispose of a matter.' In the determination of jurisdiction, the requirement of legality is therefore the overriding consideration. As Ngcobo J correctly noted in S v Jordan,46 the Constitution is concerned with legality and not desirability. Furthermore, as Professor Theophilopoulos has quite correctly observed, jurisdiction is predicated on the twin pillars of the court's capacity to take cognizance of a case, to hear it, to give judgment and to enforce its decision.47 Further, it is the power to give an effective judgment and not merely power over the defendant which is the test of jurisdiction.48 To determine if the court is able to render an effective judgment is thus a matter of common sense.

It is convenient to pause for a moment to examine if the CCMA or the Labour Court was able to render an effective judgment in this matter. Section 193(1) of the LRA provides for reinstatement as the primary remedy against a substantively unfair dismissal.49 This remedy is to be preferred against any other remedies unless there are compelling reasons why compensation should be more appropriate in the circumstances. Furthermore, the use of the peremptory word 'must' in subsection (2) indicates that the onus rests on the employer to provide compelling reasons why reinstatement should not be ordered.50

In considering the question of appropriate relief, the Court acknowledged the possible difficulties that the CCMA or the Labour Court would be confronted with when dealing with cases such as the present one. The Court pointed out, quite correctly it is submitted, that reinstatement would not be appropriate in the circumstances of the case, because by ordering reinstatement, the CCMA or Court would manifestly be ordering for violation of the provisions of the Act.51 The Court stated emphatically thus:

... this judgment does not hold that, when a sex worker has been unfairly dismissed, first respondent or a court should or can order her reinstatement, which would manifestly be in violation of the provisions of the Act. ... Manifestly, it would be against public policy to reinstate an 'employee' such as appellant in her employ even if she has could show, on the evidence, that her dismissal was unfair.52

In a similar vein, the Court stated that:

[F]or similar reasons it may well be that compensation for a substantively unfair dismissal would be inappropriate in the present kind of case. If compensation for substantive unfairness is to be regarded as a monetary equivalent for the loss of employment, it may be, although given the precise relief sought I express no final view, that such compensation would be inappropriate in a case where the nature of the services rendered by the dismissed employee are illegal.53

What this concession boils down to is that the Court appreciated the fact that with the kind and nature of the case before it, it would be virtually impossible, sometimes, for a court or the CCMA to render an effective award or judgment. This is especially true in cases where the dispute raised by the employee is based on substantive unfairness only. It follows, as a matter of logic, therefore, that in all disputes involving sex workers as employees, and/or any other employment relationships which are characterised by an element of illegality, the courts may not be able to render effective judgment and may therefore not assume jurisdiction to resolve the dispute involved.54

In employment relationship disputes, then, the proper approach is for the court to determine jurisdiction in terms of the LRA and the legal rules applicable to the dispute before it. In so doing the court or the CCMA would scrutinise the nature of the dispute to determine if there are any traces of illegality in the particular transaction giving rise to the dispute. This determination may, however, be effectively done after a proper examination of the true nature of the dispute has been undertaken by the court. In this regard the guidance given by the Constitutional Court in NUMSA v Bader Bop (Pty) Ltd55 is apposite: it is the duty of a court to ascertain the true nature of the dispute between the parties. In ascertaining the real dispute a court must look at the substance of the dispute and not at the form in which it is presented.56 The true nature of the dispute, or the real issue, in this matter (Kylie) was not at all about the protection of the constitutional right to fair labour practice (section 23(1)), as presented by the employee, but the jurisdiction of the CCMA to deal with that kind of dispute.

It is submitted that had the Court followed the above approach, it would undoubtedly have been impossible for it to come to the conclusion it reached.

4.3 The relevance and appropriateness of section 23 to the case

As argued above, the Court's approach in deciding this matter, specifically its heavy reliance on section 23 of the Constitution, was unnecessary. It is submitted that, by adopting the approach which it did, the Court seemingly lost sight of the purpose of the LRA, namely to be the exclusive statute regulating labour relations.57 In NAPTOSA v Minister of Education, Western Cape58 the Court held that a litigant may not bypass the provisions of the LRA and rely directly on the Constitution without challenging the provisions of the LRA on constitutional grounds. A similar view was taken by Ngcobo J in Minister of Health v New Clicks South Africa (Pty) (Treatment Action as Amici Curiae).59

In its approach, the Labour Appeal Court seems to have ignored the fact that the employee bypassed the relevant provisions of the LRA and relied directly on the Constitution to seek a remedy. The employee did not challenge any specific provision of the LRA on constitutional grounds. Instead, she contended that the approach adopted by the Labour Court was wrong because that approach effectively excluded her from enjoying her constitutionally entrenched right to fair labour practices.60 But does the LRA provide no remedy? Clearly the employee is covered by the definition of 'employee' in the LRA. It is trite that the LRA is aimed to be a one-stop shop dispute resolution structure in the employment sphere,61 and that the Labour Courts and the Labour Appeal Court derive their jurisdiction from it.62 In its approach, therefore, the Court should have started with the LRA, and not the Constitution, in deciding the question of jurisdiction in this matter. It goes without saying then that the Court was clearly misguided in its reliance on section 23 of the Constitution in deciding the matter. This conclusion, though, does not in any way suggest that the Court, in adjudicating any particular employment dispute, may not rely on the Constitution to determine the dispute. What is in fact contended is that section 23(1) may not exclusively be invoked to determine jurisdiction. Other factors, such as the possibility of rendering an effective judgment, as argued above, should also be considered.

Based on the abovementioned authority,63 it is clear that the Court's invocation of section 23 of the Constitution at the jurisdictional stage was inappropriate. The employee's challenge was not raised against a provision of the LRA. If there were any legal rule which had the effect of (unconstitutionally) ousting the CCMA or Court's jurisdiction to the detriment of the employee, such a legal rule would, obviously, be tested against the LRA. For that purpose section 21064 of the LRA would have been used to safeguard the LRA against any undue intrusion.

The next issue to be considered, and this is quite critical in this analysis, is the implication of the Court's judgment for the Constitution and for the future of labour litigation in general.

4.3 May a constitutional provision be interpreted as conferring on the court the jurisdiction to enforce illegal transactions?

It is important first to set out the legal principles relating to illegal contracts in our law. It is a fundamental principle of our law that any act done contrary to the direct prohibition of the law is void and of no effect.65 This principle is applied by courts in all legal systems based on the rule of law and is a necessary incident of the rule of law in the same way as the doctrine of legality is.66 Accordingly, if a contract is illegal, the courts regard the contract as void and therefore unenforceable.67

In the course of its assessment of the legal issues, the Court accepted the employee's argument that the illegal activity of a sex worker does not per se prevent the latter from enjoying a range of constitutional rights.68 In support of this view the

Court made reference to the minority judgment of O'Regan and Sachs JJ in Sv Jordan69 where it was held, in part:

[T]he very character of the work they undertake devalues the respect that the Constitution regards as inherent in the human body. This is not to say that as prostitutes they are stripped of the right to be treated with respect by law enforcement officers. All arrested and accused persons must be treated with dignity by the police. But any invasion of dignity, going beyond that ordinarily implied by an arrest or charge that occurs in the course of arrest of incarceration cannot be attributed to section 20(1A)(a) but rather to the manner in which it is being enforced. The remedy is not to strike down the law but to require that it be applied in a constitutional manner. Neither are prostitutes stripped of the right to be treated with dignity by their customers. The fact that a client pays for sexual services does not afford the client unlimited license to infringe the dignity of the prostitute.

It submitted that the Court's reference to the abovementioned authority was not at all helpful to its reasoning. Firstly, as correctly categorised by the majority judgment in S v Jordan,70 per Ngcobo J, the case was concerned with the commercial exploitation of sex and not an infringement of dignity nor unfair discrimination,71 nor in the present context, a dispute about the right to fair labour practices. Secondly, many of the views expressed by the minority judgment were rejected in the majority judgment.72 In support of the reasoning based on the sex worker's right to dignity, the Court recorded its observation that within the South African context many sex workers are particularly vulnerable and are exposed to exploitation and vicious abuse,73 and for that reason are entitled to some constitutional protection designed to protect their dignity, which protection by extension has now been operationalised in the LRA.74 It is submitted that this line of reasoning is, with respect, equally unsound. The reasoning is not supported by any relevant legal authority and appears to be more inventive than considerate of the current legally relevant authority.75 That a sex worker forms part of a vulnerable class does not mean that the court is bound to assume jurisdiction simply because of that fact. What if the particular sex worker is one of those sex workers in the plush suburbs of Johannesburg who charges R20 000 a night and does not need the protection? In other words, is it necessary to conceive of the litigant as a victim in order to want to come to her aid?76 By the same token, the fact that a person has a right to life or to be treated with dignity does not mean that the courts should come to his or her assistance if he or she surrenders such rights by engaging in acts which conflict with the law. To hold otherwise would certainly lead to absurdity.

Without overstating the fact, this case hinged purely on jurisdiction. The key question in this analysis therefore is simply if the common law requirement of legality in the determination of a court's jurisdiction in employment disputes indeed offends against the provisions of the Constitution, specifically the right to fair labour practices (section 23). Should it be accepted also that the Constitution, as the supreme law of the land, confers in general jurisdiction on the courts and tribunals to adjudicate matters and disputes flowing from illegal activities? Clearly, the answer cannot be anything close to affirmative. It is to be hoped that this matter will attract the attention of a superior court soon, and that a definitive pronouncement will be made.

5 The significance of Kylie v CCMA 2010 4 SA 383 (LAC)

Sex work is illegal in South Africa, yet it exists. It is not difficult to imagine how many cases would flow into the labour litigation mainstream following this judgment, the nature of the cases that the CCMA Commissioners are likely to be confronted with on a daily basis, and the reaction of the Commissioners upon receipt of such cases. One can think of quite a number of examples of cases other than those involving sex workers which the CCMA Commissioners and the South African community at large would frown upon, or even hate to think of them being dealt with by the legitimate legal structures of government.

The following two examples can best illustrate this problem: think of a paid assassin whose employment (which is to murder other people for reward) has been terminated, who then approaches the CCMA to claim unfair dismissal. Should the CCMA really set up a conciliation and subsequently arbitration hearings for such a dispute? Another example one can think of is that of a gambler who knowingly engages in illegal gambling activities as an employee to promote gambling against the relevant legislation. In the case of a dismissal or unfair labour practice dispute ensuing between such an employee and his or her employer, should the CCMA nevertheless assume jurisdiction to resolve the dispute because the judgment in this matter regards such a person as an employee for the purposes of the Constitution? It is submitted that the implications will be quite undesirable and surely, it is submitted, would not have been what the Court intended in its judgment.

Before concluding, there is one other issue regarding the Court's comment on the future adjudication of cases involving employment relationships which are in breach of legislation which requires a quick examination. The Court stated that "cases involving employment relationships which are in breach of legislation, such as the present dispute, should proceed through the constitutional threshold but not all will enjoy the defining weight of public policy, as set out, so as to justify the granting of a remedy".77

It is doubtful if the court really appreciated the implications of this finding. On proper interpretation, this statement could mean that all those employees who, but for illegality, are employees in terms of section 21378 of the LRA may rely not on the LRA to seek a remedy in the CCMA or Labour Court, but directly on the Constitution. The implications are that such employees would be excluded from the application of the LRA, just as the members of the South African National Defence Force, the National intelligence Agency and the Secret Service are.79 If this is indeed what the above statement of the Court intended to convey, then the Court's order, directing that the CCMA has jurisdiction to resolve the dispute in this case, was absurd. Otherwise the Court should not have ruled that the CCMA has jurisdiction, because the CCMA is not empowered to resolve disputes which flow directly from challenges based on a constitutional provision but enforces the LRA strictly. Only the High Court, concurrently with the Labour Court, is empowered to adjudicate disputes in respect of alleged or threatened violation of any fundamental right entrenched in the Bill of Rights, including those arising from employment and from labour relations.80 Even if the CCMA were to assume jurisdiction, it is submitted that it would be prevented from resolving unfair dismissal disputes based on the constitutional provision without reference to the LRA, because the concept of unfair labour practice, as conceptualised in section 23 of the Constitution, is not defined in the Constitution but only in the LRA. In any event, the definition of an unfair labour practice in the LRA does not include unfair dismissal.81 Either way, the CCMA would still decline jurisdiction because it would not be able to render an effective award. So, to make sense of the Court's judgment in this matter appears to be quite a daunting task.

6 Conclusion

In the above analysis an attempt has been made to show that the approach adopted by the Court in deciding the case is unsupportive of legality. For that reason, it is argued, the judgment is problematic. What emerges from the analysis is that the Court was apparently not interested in the public policy issues which the facts of the case revealed, nor was it concerned with the implications of the judgment on effective labour litigation or the credibility of our Constitution in general. Furthermore, the reasoning of the Court, especially its finding on jurisdiction, is less than satisfactory. The judgment, it is submitted, will have far-reaching implication for the conduct of cases in the CCMA in general and in particular in respect of those cases which are characterised by elements of illegality. The judgment has undoubtedly triggered a new approach to constitutional labour interpretation and with the absurdity highlighted in some parts of the judgment, it will surely take a considerable time for the CCMA and other courts to get to make sense of it and to appreciate the legal force of the judgment. Finally, it is submitted that this judgment is not the best of the judgments ever delivered by the Court, and unless it is overturned soon, the CCMA Commissioners will continue to adjudicate such labour disputes, albeit under a cloud of uncertainty.

Our modern society has become transfixed with celebrity. Business people and marketers also endeavour to cash in on the popularity enjoyed by the stars and realise the value of associating merchandise or trademarks with the rich and famous. This leads to difficulties when the attributes of a person are apparently used without consent, which poses new questions to the law: should the law protect the individual against the unlawful use of his or her image? If so, to what extent should such protection be granted? These were some of the questions which the court had to answer in Wells v Atoll Media (Pty). The judgment in Wells has redefined the right to identity and provided some clarity on what the infringement of that right would amount to. When the attributes of a person are used without consent, the right to identity can be violated in one of four ways. A person's right to identity can be infringed upon if the attributes of that person are used without permission in a way which cannot be reconciled with the true image of the individual concerned, if the use amounts to the commercial exploitation of the individual, if it cannot be reconciled with generally accepted norms of decency, or if it violates the privacy of that person.

Our modern society has become transfixed with celebrity. The mass media lap up every sordid little snippet of news about actors, music stars, sport stars, politicians, royals, socialites and other famous people and sell it to consumers who eagerly await the next celebrity scandal. Business people and marketers also endeavour to cash in on the popularity enjoyed by the stars and realise the value of associating merchandise or trademarks with the rich and famous.

This leads to difficulties when the attributes of a person are apparently used without consent, which poses new questions to the law: should the law protect the individual against unlawful use of his or her image? If so, to what extent should such protection be granted? These were some of the questions which the court had to answer in Wells v Atoll Media (Pty) Ltd.1

2 Facts

The plaintiff, as legal guardian of her minor daughter, launched an application against the defendants, as owner/publisher and as editor of a surfing magazine ZigZag, for a claim of damages arising out of the publication of a photograph of her daughter and causing the offending photograph to be displayed on national television.

The photograph was presumably taken while the plaintiff and her family were on vacation in Cape St Francis and published in the April 2006 edition of the magazine, without the plaintiff's knowledge, authority or consent. The girl was 12 years old at the time the photograph was presumably taken. It appeared in a section of the magazine entitled "dishing up the photo feast" and, as it was published, was stamped bearing the word "filth" as well as a caption at the foot of the photograph reading "all-natural Eastern Cape honey". The cover of the magazine proclaimed "100% pure filth photos inside". The photograph was also screened as part of an advertisement on national television.

Although the photograph was taken from behind and the girl's face was obscured by the angle at which it was taken as well as by her hair, many people apparently recognised the girl in the photograph. A consequence of this was that disparaging remarks were made about the girl in mobile text messages, as well as electronic chat-rooms and communities, where she was called a "slut" and "PE's little porn star". The girl was also distressed to learn that the picture had been put up as a pinup poster in such public places as a craft shop at a local casino and a local boys' school.

3 Judgment

The plaintiff based her case primarily on two issues: firstly, the publication of the words "Pure Filth" in conjunction with the photograph was defamatory and secondly, the publication of the photograph without consent amounted to an invasion of the girl's privacy. As a result, the court had to determine whether the girl could be recognised by reasonable readers of the magazine, whether the language used in conjunction with the photograph was defamatory and whether the girl's dignity and rights to privacy had been infringed.

Davis J concluded that the girl could be identified and that publication of the photograph and the accompanying words were indeed defamatory. He held that publication of the photo concerned was not reasonable as

[t]he manner in which the photograph was published without any regard to the context or implications for a twelve year old girl ... does not, in my view, satisfy the test of reasonable publication ... .

Davis J found support for his conclusion in section 28(2) of the Constitution, which provides that a child's best interests are of paramount importance in every matter concerning the child. He found that publication of the photograph without any attempt to obtain consent and with the clear purpose of including it to increase the attraction of a commercial publication was not in the best interest of the girl and constituted a failure of the standard of the reasonable publisher in the position of the defendants.

On the questions pertaining to the invasion of privacy and the infringement of dignity raised by the plaintiff, he added that

[i]n Grütter v Lombard and another 2007 (4) SA 89 (SCA), at para 8 Nugent JA, in a most carefully researched judgment, noted that it was generally accepted academic opinion that features of a personal identity are capable and indeed deserving of legal protection. In the context of this case, therefore, the appropriation of a person's image or likeness for the commercial benefit or advantage of another may well call for legal intervention in order to protect the individual concerned. That may not apply to the kinds of photographs or television images of crowd scenes which contain images of individuals therein. However, when the photograph is employed, as in this case, for the benefit of a magazine sold to make profit, it constitutes an unjustifiable invasion of the personal [sic] rights of the individual, including the person's dignity and privacy. In this dispute, no care was exercised in respecting these core rights.

In the context of this case, therefore, the appropriation of a person's image or likeness for the commercial benefit or advantage of another may well call for legal intervention in order to protect the individual concerned. That may not apply to the kinds of photographs or television images of crowd scenes which contain images of individuals therein. However, when the photograph is employed, as in this case, for the benefit of a magazine sold to make profit, it constitutes an unjustifiable invasion of the personal [sic] rights of the individual, including the person's dignity and privacy. In this dispute, no care was exercised in respecting these core rights.

As a result, on this ground as well, Davis J ruled in favour of the plaintiff. However, he did not base this aspect of his judgment on the invasion of privacy and the reliance on Grütter2 is significant here. In the context of this case, it means that the way the photograph was published constituted both defamation and an unlawful appropriation of the girl's image. It was this unlawful appropriation which resulted in the violation of her privacy.

4 Discussion

This case is of little significance in so far as it relates to the common law of defamation. However, the restatement of the law laid down in Grütter v Lombard3 in respect of the appropriation of an image is of much significance. Of particular interest is Davis J's apparent conclusion that appropriation of a person's image constitutes an unjustifiable invasion of the personality rights of the individual, where a photograph is published for the benefit of a magazine sold to make profit. It invites the question if all magazines and newspapers are not sold for profit and if every photograph published in newspapers and magazines is not published "with the clear purpose of including it to increase the attraction of a commercial publication".4 It also seems to suggest that the media may not display or publish a photograph depicting an individual subject unless that subject has consented to such display or publication.

If this is indeed how Davis J interpreted the law, the interpretation holds far-reaching implications for the media. The possibility of such an interpretation demands a deeper analysis of the law in so far as it relates to the unauthorised use of a person's image. Such an analysis requires some understanding of the historical foundations of the law in this regard, as well as some reflection on the law in other jurisdictions to determine if they can assist in making sense of this judgment. In particular, since this case raises the issue of privacy in the context of the unauthorised use of a person's image, it may be worthwhile to pay particular attention to Dutch law and the laws in various jurisdictions in the United States of America. As I will illustrate below, in Dutch law and the laws in many of the US states, the infringement of a person's right to identity invariably raises issues of privacy.

5 Historical development

Ancient legal systems already recognised certain personality rights, but were generally concerned with protection of individuals against physical assaults only. For instance, the Twelve Tables of early Roman law provided for a variety of physical impairments for which predetermined compensation could be claimed in delict.5 These principles would eventually form the basis on which the actio iniuriarum would develop during the Roman Republic.6 During this period, the focus in the Roman law of personality rights shifted from physical assault to contumelia or insult as the basis for unlawfulness.7 Eventually Roman law reached the stage where any insult through word, act or conduct could be actionable. The form of the insult ranged from physical assault to cases of insult where no physical attack took place.8 Eventually, it was decreed that

[t]he Praetor outlaws that which could lead to insult for another. So whatever one does or says to embarrass someone else that gives rise to the actio iniuriarum.9

Roman law consequently reached the stage where a variety of personality rights was recognised and any infringement of a person's body, honour or dignity could in principle found a claim with the actio iniuriarum.10 And, more significantly from a modern perspective, the scope of the actio iniuriarum could be extended on the strength of the general boni mores test to cover situations not previously envisaged under that remedy.11 However, it seems that in Roman law the unauthorised use of another person's name or image was actionable only if such use would also amount to an insult, as when someone wrote, published or performed a poem or song that ridiculed someone else.12 For some time it seemed that our modern law would follow suit. In Kidson v SA Associated Newspapers Ltd,13 a photo of three nurses appeared next to a newspaper article in which the headline and introductory text stated that lonely nurses were looking for boyfriends to provide (probably more than) company. Here the court steadfastly held on to the requirement of insult, with the result that two of the plaintiffs failed with their claims. One of the plaintiffs succeeded on the grounds that she was married and therefore apparently insulted by the insinuation that she was potentially unfaithful. The courts in Grütter14 and Wells15 have, however, now established that our modern law has moved beyond the requirement of insult in this kind of case.

The actio iniuriarum was also received into medieval European legal systems.16 Voet17 explains that iniuria consisted of any infringement of a person's good name or reputation. It could be committed through acts, words, writings or collusion with another. But it seems that insult was still a requirement if someone wished to succeed with a claim for the unauthorised use of his image.18 The focus was solely on privacy and dignity, rather than a concern with unfair appropriation of economic value derived from the image of another. From these concepts the modern concepts of privacy and dignity developed in the private or civil law of many modern legal systems.19 From there only a small adjustment in focus was required to deal with commercial exploitation of an individual's image.

On the other hand, in early English law, royal justice was a favour which had to be specifically granted by the King. A party who wished to originate a suit in the King's courts consequently first had to obtain a royal writ from the King's Chancery to authorise commencement with the action.20 As a result, early English law followed a procedural approach as opposed to the principles-based approach that was followed in other European systems.

Where one person suffered a wrong at the hands of another, this was in certain cases seen as a disturbance of the King's peace and the wronged party could obtain the writ of trespass. Initially, three kinds of trespass were recognised: battery or assault, taking goods, and entering land or a house.21 Trespass was soon modified to extend its scope to various other wrongs.22 The effect of this was that different writs or actions were developed for different wrongs.23 The Anglo-American law of torts in the modern sense developed from this in the nineteenth century.24

Towards the end of the eighteenth century in the United States of America, the Fourth Amendment, which dealt with unreasonable searches and seizures, introduced the concept of personal sovereignty.25 This in turn gave rise to the systematic protection of domestic privacy in various state courts and the imposition of penalties for criminal trespass, which in turn gave rise to civil remedies against intrusions by strangers.26 In 1880 this process gained substantial momentum with the publication of an article in which Warren and Brandeis27 sought to extract a right of privacy from the protection afforded by common law copyright, on the grounds that the protection afforded to the expression of thoughts merely amounted to enforcement of the more general right of each individual to be left alone.28 The right to privacy at common law was first recognised by the Supreme Court of Georgia in Pavesich v New England Life Insurance Co29 and this provided the impetus for courts in other states to follow suit.30 Significantly, many of the early cases on the right to privacy in the United States dealt with the unauthorised taking or publication of photographs depicting the aggrieved parties. This provided the logical basis, then, for the eventual protection of identity in various US states today.

6 Comparative analysis

Most legal systems today recognise identity as a personality interest which deserves protection. The level of protection, however, differs substantially from one jurisdiction to the next.

Dutch law provides elaborate protection against unauthorised use of an individual's image. The Auteurswet protects the individual against unauthorised publication of his or her portrait. The explanatory memorandum to the Auteurswet explains that the concept "portrait" can be defined as any depiction of a person's face with or without any other parts of the body, irrespective of how the depiction was made. Section 21 of the Auteurswet provides that publication of the portrait is not authorised if the subject or, after demise of the subject, one of his or her surviving dependants has a reasonable interest in opposing publication.

The requisite interest can take one of two forms. Firstly, there is the interest in privacy. A subject can oppose publication of a portrait if the subject can show that such publication will infringe on his or her right to privacy. By the nature of things, famous people such as politicians and film and sport stars must endure invasion of privacy to a greater extent than others, but there are limits, and when the limits are exceeded this excess can form the basis for a claim. Therefore, when a magazine stated on the cover that a football player had a homosexual relationship with a singer but the article in the magazine declared the opposite, it was held that there had been a breach of the football player's privacy.31

Secondly, there is a commercial interest. Dutch law recognises the fact that the image of a famous person has become a commodity.32 In the 't Schaep met de Vijf Pooten case, 33 the Hooge Raad laid down two requirements before an individual could claim a commercial interest. Firstly, the individual concerned must already have obtained some fame from practising his or her profession. The concept "profession" is interpreted broadly, so that even amateur sports people, who do not strictly speaking practise sport as their profession, are included here if they have gained some fame from participation in their sports.34 Secondly, there must be a commercial exploitation of such fame. This aspect was clearly explained in the De slag om het voetbalgoud case. 35 A book, entitled De slag om het voetbalgoud, filled with photographs of the players in the Dutch football team which played in the final of the 1974 World Cup tournament, was published. This in itself did not violate any of the players' rights as it merely amounted to a factual report on a contemporary matter of public interest. However, the publishers sold the entire print run of the book to a company which used the book as part of its marketing campaign. The Rechtbank Haarlem held that this latter aspect amounted to commercial exploitation, with the result that it infringed on the players' portrait rights.

In the United States of America, various states protect identity under the broader concept of privacy. The Second Circuit Court of Appeals in New York laid the foundation in Haelan Laboratories Inc v Topps Chewing Gum.36 The appellant contracted with various baseball players for the exclusive right to use their images in the marketing of the appellant's chewing gum. The respondent did the same in the marketing of its chewing gum, but did not obtain the consent of the players concerned. The court held that, apart from the statutory right to privacy in the New York Civil Rights Law, a right to publicity could also be derived from the common law of New York.

The Second Circuit Court of Appeals eventually held in Pirone v MacMillan37 that the court had erred in Haelan Laboratories38 since the right to identity was recognised only by statute in the New York Civil Rights Law and that there was no distinguishable common law right to identity in New York.39 By this time, however, Haelan Laboratories40 had already served repeatedly as authority and led to the recognition of a common law right to publicity in more than thirty of the US states.41

In Allison v Vintage Sports Plaques,42 Kravitch J of the federal appeals court for the Eleventh Circuit summarised the common law position succinctly.43 She explained that in Alabama, as in various other jurisdictions in the United States, the right to the use of a person's image is protected under the tort of invasion of privacy. This tort can be committed in any one of four ways. Firstly privacy is violated through access to the plaintiff's physical and intimate secludedness, secondly through publication in conflict with generally accepted norms of decency, thirdly through publication which places the plaintiff in a false light, and fourthly through unauthorised use of the plaintiff's image for commercial gain. The third category is also known as the "tort of false light publicity", while the fourth category is also known as the "tort of commercial appropriation".

The basis for the protection of the right to identity in terms of these measures is the financial interest of the individual and not merely human dignity, as one would expect with the invasion of privacy. To succeed with a claim under commercial appropriation, the plaintiff must prove that the respondent used the plaintiff's identity, that the purpose of the use of the plaintiff's identity is commercial or other gain for the respondent, that the plaintiff's image was used without consent and that the plaintiff will suffer loss or prejudice as a result. In this regard, a court would look at the commercial damage to the business value of the human identity or the extent to which the plaintiff is deprived if he or she does not receive money for authorising the use of his or her image.

Some jurisdictions in the United States of America follow a twofold approach where both statutory and common law measures are applied to provide extensive protection against the unauthorised use of an individual's image.44 In California section 3344 of the Civil Code provides that it is unlawful for one person to use the name, voice, autograph, photo or likeness of someone else for purposes of advertising, trade, or solicitation of customers or clients, without consent. An injured party may, in terms of this provision, cumulatively claim damages consisting of the profit which the wrongdoer gained from the use of the person's image, as well as punitive damages.45 The protection is not limited to famous people, but is at the disposal of anyone whose image is used without consent.46 Section 1449 of the Oklahoma Statutes contains essentially the same provision.

Apart from the extensive statutory provisions to protect the individual against unauthorised use of his or her image, common law protection is also recognised in California47 and Oklahoma.48 In Porten v University of San Francisco49 the court explained that the right to identity can also be protected by means of the tort of invasion of privacy. This tort can be committed in one of four ways. Firstly, privacy is breached through violation of the plaintiff's physical and intimate seclusion, secondly through publication contrary to generally accepted norms of decency, thirdly through publication which places the plaintiff in a false light and fourthly, by using the image of the plaintiff for commercial gain without consent.

7 South African law

In South Africa the common law approach has thus far been followed where the attributes of a person have been used without consent for commercial purposes. After some uncertainty, the Supreme Court of Appeal in Grütter v Lombard50 at last recognised an image as an aspect of personality which demands protection, and this has now been confirmed by the Western Cape High Court in Wells v Atoll Media (Pty) Ltd.51

In Grütter52 the Supreme Court of Appeal had to decide if the name of the appellant could still be used in the name of a law firm even though his relationship with the firm had come to an end. The appellant did not claim any exclusive right to use the name, nor did he allege that the respondents made themselves guilty of passing off. The appellant merely made the case that it was well-known that he was one of the persons to whom the name referred and that he no longer wished to be associated with the firm now that his relationship with them had ceased.

In a unanimous judgment, Nugent JA held that privacy is merely one of a variety of interests that enjoy recognition in the concept of personality rights in the context of the actio iniuriarum. The interest which a person has to protect his or her identity against exploitation cannot be distinguished therefrom and is similarly encompassed by that variety of personality rights which is worthy of protection.

[i]dentity is that uniqueness which identifies each person as a particular individual and as such distinguishes him from others. Identity manifests itself in various indicia by which the person involved can be recognised: that is, facets of his personality which are distinctive or peculiar to him, such as his life history, his character, his name, his creditworthiness, his voice, his handwriting, his outward shape, etcetera. A person has a definitive interest that the unique nature of his being and conduct must be respected by outsiders. Similarly, identity is infringed upon if indicia thereof is used without consent in a way which is not compatible with the image of the right holder.

On the basis of these principles, Nugent JA ruled that the appellant was entitled to insist that there should be no potential for error and ordered the respondents to desist from using his name and rectify the matter within a period of 30 days.

Neethling54 is apparently of the opinion that the right to identity is infringed only if the attributes of a person are used without consent in a way which cannot be reconciled with the actual image of the individual concerned. To succeed with a claim where the attributes of a person are used without permission, it therefore seems to be a requirement that the person concerned should indicate that there was some misrepresentation of his or her personality. In this regard, it may be sufficient if the unauthorised use of a person's attributes could create the impression that the person concerned consented to such use or has been compensated for such use.

This approach is also followed in Grütter,55 but there is also a second seminal principle intertwined in the judgment of Nugent JA which concerns the unjustified use of an individual's image for commercial gain. Nugent JA indicated that the interest of a person in protecting his or her image from commercial exploitation cannot qualitatively be distinguished from and is equally encompassed by the variety of personality rights which are protected under the concept of dignity.56 He further indicated that in casu that there was no justification for the respondents to use the appellant's name for their own commercial benefit.57 This would then mean that the right to identity can in this context be violated in one of two ways.

Firstly, a person's right to identity is violated when the attributes of that person are used without permission in a way which cannot be reconciled with the true image of that person. Apart from the unauthorised use of a person's image, this kind of infringement also entails some kind of misrepresentation concerning the individual, such as that the individual approves of or endorses a particular product or service or that an attorney is a partner in a firm, while this is not the case. The unlawfulness in this kind of case is found in the misrepresentation concerning the individual and, consequently, in the violation of the right to human dignity.

Secondly, the right to identity is violated if the attributes of a person are used for commercial gain without authorisation by another person. Apart from the unauthorised use of the individual's image, such a use also primarily entails a commercial motive, which is exclusively aimed at promoting a service or product or to solicit clients or customers. The unlawfulness in this case is found mainly in the infringement of the right to freedom of association and the commercial exploitation of the individual.

This is not stated explicitly in Grütter,58 but can be deduced from a careful analysis of the judgment. The significance of the judgment by Davis J in Wells59 is that this interpretation of the judgment in Grütter60 has now received judicial confirmation. Davis J clearly interpreted the judgment in Grütter61 as holding that the appropriation of a person's image or likeness for the commercial benefit or advantage of another calls for legal intervention in order to protect the individual concerned.

Thirdly, the judgment in Wells v Atoll Media (Pty) Ltd62 highlights an important aspect of the law of personality to which the court in Grütter63 also referred, and that is the interrelation between the various manifestations of personality rights. Wells64 simultaneously involved the right to a good name, the right to privacy and the right to identity. I have previously criticised the approach in various jurisdictions in the United States, which views the unauthorised use of a person's image as a violation of the right to privacy, as jurisprudentially less sound than an approach which bases the unauthorised use of a person's image on the infringement of dignitas.65 Privacy in this context is usually violated through access to a person's physical and intimate secludedness, or through publication in conflict with generally accepted norms of decency.66 The criticism was based on the argument that the unauthorised use of a person's image would generally not involve either of these aspects.

However, Wells v Atoll Media (Pty) Ltd67 has clearly illustrated how the unauthorised use of a person's image could also negatively impact on that person's privacy. In the first instance, no matter how one looks at the matter, the publication of a provocative photograph of a twelve-year-old girl simply cannot be reconciled with generally accepted norms of decency. It would be hard to reconcile it, even if the girl and her parents or guardian had consented to such use. Without consent, such publication should simply not be tolerated. Secondly, the publication of the photograph exposed the girl to disparaging mobile text messages sent to her telephone. This latter fact clearly illustrates how the unauthorised use of an image can also draw unwelcome attention and affect the private life of the individual concerned. As a result, the criticism of the American approach may be unfounded.

But what is the implication of all of this for media freedom? With any action for the infringement of a subjective right, a variety of conflicting interests must be weighed against one another. With the use of a person's image, the rights to identity, human dignity and freedom of association of the individual must often be weighed against the user's right to the freedom of expression and the freedom of the media. This important question relating to the right to identity is only touched upon as an aside in the Grütter68 and Wells69 cases. In both instances the courts made it clear that the right to identity is not absolute, but did not discuss this issue much further.

It goes without saying that the use of a person's attributes must be unlawful before a plaintiff will succeed with any claim in delict. In other cases where satisfaction or damages were claimed due to the infringement of dignitas, the courts have already recognised certain grounds of justification which would mean that the apparent violation of personality rights would indeed be lawful.

Neethling70 correctly states that public policy can justify an apparent violation of the right to identity, but it would also make sense to consider the other grounds on which the infringement of dignitas can be justified. These grounds include consent,71 truth and public interest,72 fair comment73 and jest.74 In addition Neethling75 also indicates that the public interest in art can in appropriate cases justify the use of a person's image.

8 Conclusion

Because the South African approach is derived from a common law based on general principles, the law as laid down and contemplated in Grütter76 and restated in Wells77 is open and receptive to change, so that current developments in commerce can be accommodated. This approach provides broader scope for protection than most statutory or codified provisions dealing with the right to identity. On the one hand the South African law avoids discrimination based on fame or the lack thereof, which seems to beset Dutch law in this regard. On the other hand, it seems as if South African law now recognises a variety of attributes that are worthy of protection, in contrast to statutory or codified provisions which, by definition, can protect only specifically-listed attributes.

The judgment in Wells78 is significant for various reasons. It is a restatement of the law laid down in Grütter79 and provides a judicial interpretation of the judgment in the latter case. In the process, Davis J has also redefined the right to identity and provided some clarity on what infringement of that right would amount to.

It is now trite that everyone has a right to identity. For these purposes, identity includes the collection of specific congenital and acquired attributes which are unique to the individual and distinguish the individual from others. When the attributes of a person are used without consent, the right to identity can be violated in one of four ways. A person's right to identity can be infringed if the attributes of that person are used without permission in a way which -

a) cannot be reconciled with the true image of the individual concerned;

b) amounts to commercial exploitation of the individual;

(c) annot be reconciled with generally accepted norms of decency; or

(d) violates the privacy of that person.

From this analysis, it would seem that our law has now reached a level of development which is not very different from the common law tort of invasion of privacy which applies in most US states.

In the final analysis, though, Wells80 should not be seen as a precedent to suggest that the media may not display or publish a photograph depicting an individual subject unless that subject has consented to such display or publication. The unique facts of the case and the fact that Davis J repeatedly qualified his judgment with reference to the context of the case mean that such an interpretation would be exaggerated. The user can therefore still, in certain appropriate cases, justify the unauthorised use of a particular person's attributes on the basis of public interest if such use takes place mainly in connection with public interest reporting, jest or art.

What is clear though is that the law in South Africa, because of the flexibility of a common law approach based on general principles, probably leads the way when it comes to the protection of an individual against the unauthorised use of his or her attributes.